Investigations into undesirable behaviour in the workplace

Transgressive behaviour in the workplace is any behaviour that exceeds the norms and values of the work environment. The increased focus on this issue is necessary because it not only affects the health and well-being of employees, but it can also affect organisational performance and image.

Formulating policies

Many employers are already well aware that they bear a major responsibility in preventing and addressing undesirable behaviour at work. This starts with drafting policies on how employees should treat each other and the consequences of violating standards of behaviour. It also includes establishing a clear complaints procedure, including the steps an employee should take when reporting undesirable behaviour, how the report is investigated and what consequences a justified complaint may have.

Investigating undesirable behaviour

When transgressive behaviour is reported in the workplace, the focus is usually on the complaining employee. This makes sense, as an employee who claims to have experienced undesirable behaviour has often suffered harm as a result. However, the employee accused of undesirable behaviour – or the accused – also has rights during the investigative process. Not keeping this sufficiently in mind could mean that the employer is acting culpably.

Recent case

This was at issue in a recent case (Amsterdam Court of Appeal, 23 January 2024, ECUI (abridged): 146), where an employee was employed as a tutor at an educational institution. The organisation received a complaint from students about discriminatory comments made by the employee during an online class. Following the complaint, the organisation carried out an investigation, including speaking separately with the employee and the complainants. This led to an informal warning, which was added to the employee’s personnel file. It later emerged that the recording of the lesson had been omitted from the investigation. The employee expressed his dissatisfaction at this and wanted the warning to be withdrawn.

Transparency

The conflict escalated and eventually the organisation asked the court to terminate the employment contract with the employee. However, the court ruled that the institution’s handling of the complaint had been negligent. The recording of the lesson in which the employee allegedly behaved inappropriately had not been listened to. The employee had also not been kept informed of the investigation and there was no proper hearing of the arguments of both parties. There was also no transparency; no documents had been shared with the employee during the investigation. The educational institution had therefore made mistakes during the investigation and thus acted culpably. However, this culpability was not sufficiently serious for the organisation to owe compensation to the employee.

More information

Are you dealing with undesirable behaviour at your company or work environment? Please do not hesitate to contact us for advice.

This article appeared earlier in HR Rendement.